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Today the Bush Administration put
in place the final piece of its shameful women’s health care legacy
by finalizing ill-conceived provider "conscience" regulations that
could dramatically undermine information and access to reproductive
health care services. Confirming our fears, the final rule spends more
than 70 pages explaining why the Administration is ignoring the avalanche
of comments from the medical, legal, women’s and other communities,
as well as from the EEOC, that urge them, in the interest of public
health, to halt all efforts to move forward on the rule.

Like the proposed rules, today’s
regulations will make it easier for providers to refuse patients vital
health services, and harder for patients to learn more about their health
status and health options – precisely the wrong outcomes for our health
care system. The regulations upend the notion of informed consent and
go so far as to clarify that the onus is on women to somehow divine
what information and services might be withheld by any given provider,
and then shop around to find alternatives.

Moreover, the regulations will
create confusion in crucial situations where the health and well-being
of patients should be the top priority. Current law already allows providers
and institutions to refuse to provide abortion or sterilization services
if doing so clashes with their religious or moral beliefs. Yet, sticking
to utterly unsubstantiated claims that a climate of religious intolerance
is preventing qualified individuals from entering health care professions,
HHS finalized a rule that dramatically expands the ability of health
care workers and institutions to refuse health care services.

These final regulations continue
to leave the term "abortion" undefined – thereby inviting providers
to interpret the term to include birth control. Despite claims to the
contrary, this goes far beyond current law, which already accommodates
providers who do not want to offer reproductive health services because
they have religious or moral objections. It opens the door for
insurance plans, hospitals, doctors, nurses and even administrative
staff to deny women access to contraception. The new rule also claims
that Title VII of the Civil Rights Act, which carefully balances protections
for the religious beliefs of employees with protections that ensure
that patients get access to health care services and information, just
doesn’t apply when it comes to reproductive health. According
to the final rule, provider objections in these instances should be
held to a "higher standard" – one that allows providers a virtually
unfettered ability to refuse services and information without requiring
any balancing of patient needs at all! In fact, providers would
be under no obligation to even inform patients of their objections to
providing certain services. That is, quite simply, wrong.

The good news, of course, is
that in the 2008 elections, Americans said they want leaders who will
work together to reduce unintended pregnancy and end attacks on reproductive
rights. Policymakers – in office now and those coming in this January
– have already signaled their intent to work to reverse this rule.
However, we must be vigilant about ensuring that the sincere efforts
to find common ground on reproductive health issues do not result in
any delays in reversing these regulations in service to the "big lie"
at their center: That the moral beliefs of health care violators
are being violated in any way.

At a time when reproductive
health clinics are woefully under-funded, and women in this country
experience millions of unintended pregnancies each year, the Administration
should have been looking for ways to increase women’s access to the
family planning information and services that can help them avoid unintended
pregnancy. Instead, it has done just the opposite.

In the weeks ahead, we are
urging Americans to contact the incoming Administration and Congress
to urge them to say ‘no’ to these dangerous regulations. There are
multiple legislative and administrative remedies to avoid the harm –
but immediate action is essential. At the top of the list is a request
to President-elect Obama to suspend the enforcement of the rule and
then issue a routine request for comments on rescinding the rule permanently.

"You better shop around"
may work for finding bargains in this holiday season, but it’s an
onerous and unacceptable burden to put on low-income women seeking the
reproductive health care they need.

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Today, in a last gasp action of the Bush Administration the Department
of Health and Human Services (HHS) published regulations dramatically
expanding the right of health care workers to refuse to provide
services, information and referrals to patients seeking procedures,
prescriptions or other forms of care deemed by the provider as
“objectionable.” Through ambiguous language, the regulations could
deeply undermine long-established principles of medical ethics and
responsibility by, for example, allowing providers to conflate widely
used contraceptive devices, such as birth control pills and
intra-uterine devices, with abortion. Even by individuals and
institutions receiving federal funding to provide medical care.

Last spring, Congress reauthorized the U.S. Global AIDS Act,
with a budget of $50 billion through 2013. The act included an
expanded “conscience clause” that allows organizations with “moral or
religious” objections to opt out of engaging in evidence-based
approaches to HIV prevention, treatment and care, and ostensibly to
refuse treatment and care to those whose “lifestyles” or life choices
they might find offensive. Even by those organizations receiving tens
or hundreds of millions of U.S. taxpayer dollars to end the global AIDS
epidemic.

These laws have more in common than simply the semantics of the terms
“conscience” or “refusal” clause. Instead, they are part of an
ongoing, insidious and unfortunately increasingly successful effort to
privilege one form of religious “morality” and belief above all others
in a pluralistic society. Backers of these policies seek to redefine all forms of contraceptive
technology as “abortion,” stigmatize reproductive and sexual health
services of all kinds, marginalize persons whose sexual identities or
livelihoods they deem offensive, and break the social contract between provider and patient. In doing so, they flout
basic principles of medicine and public health by citing “conscience”
as justification for denying medical care, not just through individual
action but, in the use of federal funding and via application to whole institutions, as a societal ethic. It is
one thing for private practitioners to decide not to offer certain
kinds of services. It is another altogether to use your tax dollars to
use vague and sweeping definitions of religion and morality to deny not only a specific service, but
also information and referrals, including in life-threatening
circumstances.

Under current U.S. global AIDS law, for example, a group with a “moral
objection” to the notion of “safer sex,” to sex work, or to the sexual identities of men who have sex with
men can deny accurate information on effective prevention or block
access to treatment or care by simply citing “conscience,” all the
while getting funded by the U.S. government to end the HIV/AIDS
epidemic.

These tactics go beyond what most people think of as “conscientious objection.” According to the American Civil Liberties Union (ACLU), the HHS rule would allow:

health care individuals and entities to refuse to provide
health care services for any reason whatsoever, including reasons based
on economics or discriminatory motives.

Moreover, these laws also have in common the groups that push for
them. The United States Conference of Catholic Bishops (USCCB) and the
Family Research Council (FRC) lobbied strenuously for the HHS
regulations. Saddleback Church joined USCCB, FRC and others to push
for restrictions on prevention programs and expand the “conscience”
clause in the US global AIDS Act. Not surprisingly, these groups also
lobby for tax dollars to support their programs here and abroad.

Conscientious objection has deep roots in social action and human
rights advocacy and, with respect to medical practice has long been
protected through various federal laws, such as the Church and Weldon Amendments,
and by statutes in at least 46 states. In addition, virtually all
medical associations have extensive and detailed standards of ethics
and conscience clauses.

Existing rules and regulations seek to balance a physician’s
conscientious objection to performing, for example, an abortion with
the profession’s obligations to afford all patients nondiscriminatory
access. These principles are recognized even by some religiously
affiliated medical entities that acknowledge their own objections to
providing certain kinds of care but recognize simultaneously their own
responsibilities in referring patients to access care they may need or
want.

Such ethical codes and standards recognize the inherent need to balance
the rights of the individual provider against the rights of the
individual patient and the social interest in promoting public health
and evidenced-based medical care. As bioethicist Nancy Berlinger of the Hastings Center states:

Conscientious objection in health care always affects
someone else’s health or access to care because the refusal interrupts
the delivery of health services. Therefore, conscientious objection in
health care always has a social dimension and cannot be framed solely
as an issue of individual rights or beliefs.

Public support for maintaining this balance is profoundly clear, as underscored by the results of a 2001 ACLU survey on this issue, which concluded:

This qualitative and quantitative research shows that
Americans overwhelmingly oppose laws that protect religious objectors
at the expense of the patient’s rights and the public health.

The public opposes refusal clauses that threaten access to health care.

89% oppose "allowing insurance companies to refuse to pay for medical services they object to on religious grounds."

88% oppose "allowing pharmacies to refuse to fill prescriptions they object to on religious grounds."

86% oppose "allowing employers to refuse to provide their employees
with health insurance coverage for medical services the employer
objects to on religious grounds."

[and]

76% oppose "allowing [hospitals] to refuse to provide medical services they object to on religious grounds."

By changing the terms of "conscience," the social contract balancing providers’ and
patients’ rights is broken, in part because these actions come without
a price to the so-called objector. In a 2005 article, bioethicist Alta Charo quotes Mahatma Gandhi and Martin Luther King, Jr. in stating that:

“in matters of conscience, the law of majority has no
place,” [but] acts of conscience are usually accompanied by a
willingness to pay some price. Martin Luther King, Jr. argued, “An
individual who breaks a law that conscience tells him is unjust, and
who willingly accepts the penalty of imprisonment in order to arouse
the conscience of the community over its injustice, is in reality
expressing the highest respect for law.”

But, as she points out, quoting Boston Globe columnist Ellen Goodman:

What differentiates the latest round of battles of
conscience clauses from those fought by Gandhi and King is the claim of
entitlement to “conscience without consequence.”

The consequences are however crystal clear and are felt by the person denied information, service or care. Medical and public health
professionals and the public writ large have found consensus around
services, information, and methods of medical care that should be
widely available. When individuals or groups are denied access, the
consequences are immediate and the harms directly proportional to the
level of economic and social disparity that limits access by
individuals to the care they want and need. Those harms are found
abundantly in high rates of unintended pregnancies due to lack of
access to contraception among economically and socially disadvantaged
teens, and high rates of HIV infection among women, especially
African-American women in the United States and women generally in
countries throughout Africa and Asia.

In the end, the actions by a few to rewrite the laws of conscience and
society are not just about a single law or policy, but a collective
effort to undermine a social contract on which much of our healthcare
is based. As numerous analysts have pointed out, there are ample
opportunities for the Obama Administration—through Executive and
Congressional action—to get rid of these specific and onerous
regulations. But to declare success and stop there will be to win the
battle and lose the war. These fights are as much about culture and
definition, about civil society action, vigilance and accountability on
an ongoing basis as they are about the law. And this particular fight
may well become increasingly pitched as we move toward health care
reform in the United States.

We have to recognize that legal and policy challenges are critical but
they are not enough. Those who believe in balancing provider’s rights
with patients needs and rights must be forceful and proactive in
putting the door back on its hinges, and that will take require
proactive conversation and mobilization, starting now.

]]>http://rhrealitycheck.org/article/2008/12/18/unconscionable-policies-dangerous-politics/feed/2Top Five Reasons You Should Protest New HHS Regulationshttp://rhrealitycheck.org/article/2008/09/23/top-five-reasons-you-should-protest-new-hhs-regulations/?utm_source=rss&utm_medium=rss&utm_campaign=top-five-reasons-you-should-protest-new-hhs-regulations
http://rhrealitycheck.org/article/2008/09/23/top-five-reasons-you-should-protest-new-hhs-regulations/#commentsTue, 23 Sep 2008 07:00:00 +0000New HHS regulations will do nothing to contribute to the universal goal of reducing the number of unintended pregnancies.

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A firestorm of criticism erupted after
Health and Human Services (HHS) Secretary Michael Leavitt proposed a new health care refusal regulation that could create
serious barriers to publicly funded family planning services for the
women and men most in need. Below, the National Family Planning and Reproductive Health Association has outlined the top five reasons why you should protest the new regulations.

The public has been given 30 days to respond to the new regulations; the deadline to submit those comments is this Thursday,
September 25.

It is imperative that as many people
as possible send their comments to HHS to make it known that these regulations
must not become law and that family planning must be protected.

Our top five list of objections, offered below, should provide you some inspiration as you begin
to draft your own comments. Pass this inspiration on to your friends
and neighbors and be sure to get your comments in by Thursday evening.
A flood of comments from the general public can change the minds of our leaders — and it is the most direct way to participate
in the creation of the policies that affect us all.

1. These new regulations could allow community health centers, hospitals
and individuals to refuse to provide family planning counseling and
contraception all in the name of moral objections.

Leavitt
insists that these regulations are about protecting the "conscience
rights" of providers, but it’s clear that this justification is
just a ruse to continue the war on contraception, which 90 percent of
Americans use to be sexually responsible and raise families. These
regulations are unnecessary, as there are already laws on the books that
balance provider protections with patient’s rights. Indeed, this rule
appears to extract the health care needs from the equation altogether.

2. The definition of who may refuse
service and what falls under the "service" category appears to have
been broadened and could include even the most basic information, counseling
on contraception and referral for important health care services.

Right
now, an individual who walks into a health center goes in with the understanding
and guarantee that they will receive access to the services they need
or at the very least information. This includes access to various types
of contraception. Under this proposed rule, however, that same individual
will go in to their health center with no such guarantee and could be
subject to the individual political whims and ideology of their provider.

3. This rule does nothing to contribute to the universal goal of
reducing the number of unintended pregnancies and the need for abortion.

Myriad
state and federal programs have actually increased access to family
planning. Bush’s rule essentially negates these successful policies,
which have reduced unintended pregnancies and the need for abortion.
Such state and federal laws have helped lawmakers achieve those feats
because they provide for services such as counseling and contraception.

4. The proposed rule completely ignores the existing framework of patient
protections found in federal law.

Existing
federal laws, including Title VII of the Civil Rights Act of 1964, create
a robust legal framework for balancing the rights of health care providers
to exercise their religious and moral beliefs with the needs of patients
to access crucial health care services, including family planning. The
proposed rules make no mention of this existing legal framework, a telling
and disturbing silence.

At
a time when insurance costs are skyrocketing and the numbers of the
uninsured are increasing, it seems highly irresponsible to propose a
rule change that would actually hamper successful programs. A recent
Guttmacher Institute report shows that for every dollar spent nationally
on publicly funded family planning health centers, $4.02 is saved in
pregnancy-related and newborn costs to Medicaid.

This proposed rule is an affront to Americans everywhere and the administration’s
rationale for it, to protect "conscience rights," is at once cynical
and transparent. Instead of serving the needs of the far right fundamentalists,
the federal government should be looking for ways to build upon our
public health system, not destroy it. This rule is a strategic part
of a war currently being waged on contraception in America. Secretary
Leavitt and President Bush have not proposed a refusal clause; they’ve begun
an unconscionable war against mainstream America’s support for family
planning and contraception.

So get your comments in and make sure
your voice is heard at HHS today. Go to regulations.gov and search for
docket ID "HHS-OS-2008-0011" to leave your comments online.

]]>http://rhrealitycheck.org/article/2008/09/23/top-five-reasons-you-should-protest-new-hhs-regulations/feed/1Testimony Before the President’s Council on Bioethics: Protecting Patients’ Rightshttp://rhrealitycheck.org/article/2008/09/12/testimony-before-presidents-council-bioethics-protecting-patients-rights/?utm_source=rss&utm_medium=rss&utm_campaign=testimony-before-presidents-council-bioethics-protecting-patients-rights
http://rhrealitycheck.org/article/2008/09/12/testimony-before-presidents-council-bioethics-protecting-patients-rights/#commentsFri, 12 Sep 2008 07:00:00 +0000Proposed HHS regulations seek to protect provider conscience -- at the expense of patient access to care. Testimony submitted to the President's Council on Bioethics examines the harmful ramifications these regulations could have.

Editor’s Note: The following is excerpted from written testimony submitted by Lois Uttley, director of the MergerWatch Project, to the President’s Council on Bioethics, which is meeting Thursday and Friday of this week. Lois’s testimony concerns the harmful implications of proposed Dept. of Health and Human Services regulations regarding provider conscience, and puts forward alternative regulations that would protect patients’ conscience and access to care.

Recently, a great deal of public attention and public policy
has been focused on protecting the religious and ethical beliefs of health
providers. As your council discusses this issue, I urge you to consider another
imperative – protecting the rights of patients to receive accurate medical information
and needed treatment in a timely manner. In a pluralistic society such as we
have in the United States,
public policy must carefully balance the needs and rights of all affected parties.

Let’s use an example to make this discussion very concrete:

A 19-year-old rape victim – let’s call her Sally
— is brought to a hospital emergency department by the police. The physician
who treats her numerous injuries – Let’s call him Dr. Brown — omits any
mention of the potential to prevent pregnancy from the rape by using emergency
contraception, because he does not approve of it for religious reasons. Many
hours later, Sally leaves the hospital without being informed about emergency
contraception, or offered the medication. A friend takes her back to the
college dorm where they live and Sally, exhausted, falls asleep for 24 hours. Because emergency contraception is the most effective
when taken shortly after unprotected intercourse, Sally’s opportunity to
prevent pregnancy has now been greatly diminished.

What has just happened? Is this proper medical care? What
are Sally’s rights? What are Dr. Brown’s? And, how should they be properly
balanced?

The patient’s rights

Let’s start with Sally. After all, the patient is supposed to be the focus of what the health professions now refer to as "patient-centered care." According to the Institute of Medicine, "patient-centered care is defined as health care that establishes a partnership among practitioners, patients and their families (when appropriate) to ensure that decisions respect patients’ wants, needs and preferences and solicit patients’ input on the education and support they need to make decisions and participate in their own care."

One of the central tenets of patients’ rights and
"patient-centered care" is the right to informed consent. For a patient to make
an informed decision about medical treatment, he or she must have knowledge of all
potential treatment options, and their risks and benefits. In this case, the
rape victim has not been informed about an important potential treatment option
– use of emergency contraception to prevent pregnancy. As it happens, Sally is
one of the millions of American women of reproductive age who are not aware of
EC. So, Sally has had no opportunity
to consider this option or use her own moral, ethical or religious perspectives
to decide whether she wishes to risk the chance of bearing the child of a
rapist. Further, she has had no chance to discuss with her physician the
potential medical complications of an unplanned pregnancy, in view of her existing
medical conditions, which include diabetes.

How could this violation of patients’ rights be corrected? The
simplest method would be to require all hospital emergency department
personnel, including Dr. Brown, to always offer EC to rape victims who are of
reproductive age.

Physicians’ rights
and responsibilities

But now, let’s focus on Dr. Brown. A fundamentalist Christian,
he believes that emergency contraception is the same thing as abortion, even
though medical and scientific experts say that is untrue and the FDA has stated
unequivocally that emergency contraception prevents pregnancy and does not
cause an abortion.

Dr. Brown argues that requiring him to give emergency
contraception to Sally would violate his religious beliefs. "I shouldn’t have
to give up my religious freedom in order to be a doctor," he says.

Let’s pause for a moment to consider whether personal
beliefs that are unsupported by or unrelated to medical science should be
considered valid reasons why a licensed medical professional should be
permitted to refuse to provide needed medical care, especially in an emergency
situation in a facility that serves the general public. How far should we allow
Dr. Brown or one of his colleagues to go with such claims? If Dr. Brown also
believes that AIDS is a just punishment from God for perverted behavior, should
he be allowed to refuse to treat any
patients with AIDS? What if one of his colleagues believes that under Islamic
law, anyone who committed murder
should be sentenced to death? Should he be permitted to refuse to treat
suspected murderers who are brought to the emergency room for treatment of
wounds suffered in the attack? Where would we draw the line between acceptable
and unacceptable moral reasons for refusing to provide care?

In the interests of moving our analysis along, however,
let’s set that issue aside and see if there is a compromise we could arrive at
that would permit Dr. Brown to refuse to give EC to Sally, while still ensuring
that she gets the medication in a timely manner. What if we just require Dr. Brown to refer
Sally to another physician or a nurse in the emergency department who could inform
her about EC and provide her the medication if she wishes to use it?

That, too, is unacceptable, Dr. Brown says, because it
requires him to cooperate in helping the patient receive treatment he finds
morally objectionable. "I cannot be implicated in any way in helping her commit
an immoral act," he states.

One could argue that Dr. Brown’s professional responsibilities
to his patient should obligate him to provide Sally with at least a referral in
such a situation. But, under a proposed "Provider Conscience Regulation" issued
by the U.S. Department of Health and Human Services (HHS) on August 26, 2008,
no entity receiving federal funding (such as the hospital where Dr. Brown works)
could require him to give Sally the medical information or referral she needs
if he claims a religious objection. To attempt do so would be to "discriminate"
against him, and could result in the loss of federal funding, according to the
rule. Not a single other physician or
nurse in the hospital could be required to step in and give Sally what she
needs, if that health professional held the same views as Dr. Brown.

Moreover, HHS has proposed a very expansive definition of the
term "assist in the performance of" to permit refusals for "participation in any activity with a reasonable connection to the
objectionable procedure, including referrals, training and other arrangements
for offending procedures." Arguably, this definition would permit a pharmacy
technician to refuse to stock emergency contraception in the hospital pharmacy,
or a hospital purchasing agent to refuse to order it. Again, we face the
question of where we should draw the line between acceptable and unacceptable
refusals. The proposed HHS rule would seem to draw no line at all, instead
allowing medical professionals and hospital personnel to use personal moral or
religious beliefs to exempt themselves from any
medical obligations to their patients.

Let’s consider another alternative – requiring the hospital
to be responsible for ensuring that Sally’s rights as a patient are protected.

Hospital responsibilities

Arguably, the hospital should
already be responsible for ensuring that Sally’s medical needs are met. In
order to participate in the federal Medicare program, and to be reimbursed
under the Medicaid program, hospitals must adhere to "Conditions of
Participation." These conditions are meant to ensure that patients’ rights are
respected and they received medically appropriate care. For example, hospitals
are required to:

"Honor a patient’s right to make informed
decisions regarding his or her medical care."

"Meet the emergency needs of patients in
accordance with acceptable standards of practice."

"Have pharmaceutical services that meet the
needs of patients."

But since the Medicaid/Medicare Conditions of Participation has
not yet been enforced to require the provision of EC to rape victims, a
number of states have enacted so-called EC in the ER or Compassionate
Care for Rape Victims laws. These statutes specifically require
hospitals to offer emergency contraception to rape victims, or, at
minimum, inform rape victims about the potential to use the medication
to prevent pregnancy.

How should the hospital go about fulfilling these
responsibilities for patients like Sally? Should administrators fire Dr. Brown
and replace him with someone who will dispense EC to rape victims? No, that
would not be the preferable way of dealing with this situation, because there
are far less drastic options available.

Instead, the hospital could offer Dr. Brown a transfer out
of the ER into another unit of the hospital where he would not be expected to
dispense EC, and replace him in the ER with someone who has no objections to
EC. Such an arrangement would be an example of a "reasonable accommodation"
under Title VII of the Civil Rights Act of 1964, which requires employers to
reasonably accommodate an employee’s religious beliefs or practices, unless doing
so places an "undue hardship" on the employer’s business. This type of careful balancing
of competing rights is a hallmark of American public policy.

But, Dr. Brown might argue that he is being discriminated
against even by such a reasonable accommodation, because it removes him from
the practice of emergency medicine, which he sees as his mission in life. The
proposed HHS rule might give him ammunition to do so, because it lacks any attempt to balance his rights with the patients’
rights and the obligation of the hospital to serve its patients.

!pagebreak!

HHS Secretary Michael Leavitt, in a press conference to
release the department’s proposed rule, went so far as to frame the issue this
way: ""Freedom of conscience is not to be surrendered upon issuance of a
medical degree." He told reporters, "This is about protecting the right of
a physician to practice medicine according to his or her moral compass."

Is there another solution? How about requiring the hospital
to have a routine protocol of offering EC to all rape victims, and designating
someone on each shift who does not object to EC to step in, inform the patient
about EC and offer it? This surely would be somewhat cumbersome, and would
require careful management of hospital staffing schedules. It also would
require that Dr. Brown and any other hospital emergency department personnel
who have objections to dispensing EC disclose those objections up front, so
that hospital administrators can make appropriate scheduling decisions.

Religious hospital
claims to "conscience" rights

But what if the hospital as an institution operates under a religious
doctrine that expresses grave reservations about the use of emergency
contraception? Let’s put Dr. Brown and Sally in the emergency department of St.
Mary’s Roman Catholic Hospital. Like other Catholic hospitals, it is governed
by the Ethical and Religious Directives
for Catholic Health Care Services (ERDs), which offer guidance about EC that has been interpreted in a variety of ways. Some
Catholic hospitals provide EC to all rape victims. Some administer a pregnancy
test, even though such a test would only be able to detect a pregnancy that was
established prior to the rape (and if the woman is already pregnant, she does
not need EC). Some require the rape victim to undergo an ovulation test. If the
test comes back positive, EC is denied because of the hypothetical possibility
that there might be a fertilized egg in existence. Still other Catholic
hospitals refuse to offer EC at all.

St. Mary’s Hospital, as it
happens, is one of the Catholic hospitals that refuse to allow any dispensing
of EC. Moreover, the hospital does not permit staff to even discuss EC with
patients like Sally, citing another two of the ERDs.

Under a new state law taking effect in six months, St.
Mary’s and all other hospitals in this state (including Catholic ones) will be
required to offer EC to rape victims. Dr. Gray, a colleague of Dr. Brown’s in
the emergency department, is happy about the new law, because he believes it is
his professional and ethical obligation to serve the patient’s medical needs,
and he wants to be able to offer EC to patients like Sally. He is upset about
what he views as the hospital’s violation of his rights to use his own ethical
beliefs and his medical training in deciding how to treat patients. (The
proposed HHS regulation, it should be noted, does not seem to protect
physicians like Dr. Gray, who wish to provide
medical treatment, not refuse it, but
are stymied by institutional religious restrictions.)

St. Mary’s, which opposed the new law, hopes to argue that since
it considers emergency contraception to be an abortifacient, it cannot be
compelled to obey the law. Administrators of St.
Mary’s plan to cite the proposed HHS rule which, in seeking to enforce
compliance with a longstanding federal law allowing federally-funded hospitals
to refuse to perform abortions or sterilizations, seems to leave the definition
of abortion open to interpretation.

The regulation, as promulgated, dropped a definition of
abortion that had appeared in an earlier draft that had attempted to conflate
contraception with abortion by including anything
that could interfere with a fertilized egg. But, as the Washington Post
reported, supporters and critics alike agreed that the language remains broad
enough to apply to contraceptives. HHS
Secretary Leavitt, in response to reporters’ questions about the proposed rule,
acknowledged that there was no definition of abortion and that some medical
providers may want to "press the definition" and make the case that some forms
of contraception are tantamount to abortion, according to the Wall Street
Journal.

Does this mean that state health officials who try to
enforce the new state law at St. Mary’s – in order to ensuring that all rape
victims are offered emergency contraception — might risk being found guilty of
"discrimination" against St. Mary’s? Could the state lose all of its federal
health funding as a result? Is that really the outcome we should be seeking in
federal policy?

If St. Mary’s were to be successful in its claim, what would
happen to rape victims who need emergency contraception? Should they be
expected to go to drugstores to buy it, even though they have just suffered a
traumatic attack, may have had their clothes torn and may have been robbed of
their purses, their money and their car keys? What if the local pharmacy also
objects to emergency contraception? The proposed HHS rule, which purports to be
about protecting health providers from having to perform abortions and
sterilizations, extends provider conscience protections to pharmacies (and
also, it should be noted to a wide variety of other health care institutions,
including nursing homes and dentists offices).

Should rape victims be expected to leave St. Mary’s and go
to a different hospital, again in a traumatized state? What if St. Mary’s is the only local hospital?

Conclusions

To hear HHS Secretary Leavitt and his colleagues tell it, the
department’s regulatory might and funding power must be marshaled behind medical
professionals in this country who, they contend, are at serious risk of
retaliation, firing or being forced to surrender their medical licenses for
exercising their religious consciences. The department’s introduction to its
proposed rule on provider conscience states, "There appears to be an attitude
toward the health professions that health care professionals and institutions should
be required to provide to assist in the provision of medicine or procedures to
which they object, or else risk being subjected to discrimination." The
Department’s commentary, however, did not supply a single example of a health
professional who actually had been discriminated against.

Secretary Leavitt claimed at his press conference releasing
the proposed regulation that "there is nothing in this rule that would in
any way change a patient’s right to
a legal procedure" and that "this regulation does not limit patient
access to health care."

But, as the story of Sally, Dr. Brown and St. Mary’s
Hospital has demonstrated, that would not be the case. In fact, the proposed
HHS rule has the potential to seriously undermine the already fragile balance
between providers’ rights and patients’ rights in the American health care
system. It would tip the scales far over in the direction of objecting health
providers, and leave patients at risk of going without needed medical
information and care. It would allow
providers’ personal moral beliefs to come before patients’ rights and would take
American health care in the opposite direction from "patient-centered care."

Recommendations

Clearly, the proposed HHS rule should be withdrawn. It is
both unnecessary and overreaching in its broad interpretation of those existing
statutes.

But I also recommend that your council consider ways in
which public policy could more strongly protect patients’ rights and access to
care, without unduly burdening individual health practitioners who have moral
objections to providing certain medical services. What would be some ways of
doing this?

Patients’ right to informed consent must
be paramount. Patients must be informed of all potential treatment
options so that they are able to give fully informed consent, based on
medical recommendations and the patient’s own ethical or religious
beliefs.

Acute care hospitals and any other health facilities that are licensed to
serve the general public and receive patients needing emergency care must
be required to provide such care immediately. When time-sensitive emergency
care is needed — such as for rape, an ectopic pregnancy or a miscarriage
– a hospital must be required to provide it immediately on site.

The ability of non-objecting health
practitioners to fulfill their duty to their patients must be safeguarded.Physicians and other caregivers must be guaranteed the right to
discuss all treatment options with patients, regardless of whether those
options are permitted at the hospital or other health facility, and must
be able to assist patients in obtaining desired treatment at alternate
facilities.

When health institutions serving the
general public have treatment restrictions based on religious or ethical
principles, they should be expected to disclose those policies to patients
and individual health providers

For non-emergency care, referrals to
alternate practitioners or facilities must be made if treatment is being
refused.